OH v BLS/LTSB

[cymruambyth]

Hi summer, sorry to hear you have been poorly, hope you are better soon.

Hopefully he will battle and then it will be in the hands of the DJ lottery:eek:

Edited January 2, 2010 by cymruambyth

[lilly white]

Thanks lilly.

I will just have to ensure that I have enough supporting legislation that I can put his way if needed.

Can you answer my earier question about hearsay evidence? With the different rules applicable to Small claims, can it still be applied or is it the luck of th draw?

Thanks

 

 

ok hearsay means what is says, where is the proof .that is it.

 

where you there, did you see it been copied , in any court you need to question everthing,

 

in short unless there is proof it is hearsay.

 

look at it this way, i feel i know you, however i do not.

 

 

keep strong and make your own luck it is not the answers but the questions

 

 

lilly

[cymruambyth]

thank you, though I feel zen is guiding you:D

[cymruambyth]

He's not the only one to feel like that, the first time is always the worst but when you win, tell him its better than sex!

 

 

He'll never leave court:lol:

[foolishgirl]

Thank you everyone. He is just picking at everything that I felt confidentish about and it has dented my 'knowledege'. i supose i really wanted support that we should be fighting this battle. The stupid thing is he can probably 'perform' better than I can.

 

Look on his criticism as practice for the arguments you might encounter in court. If you can answer his points, you'll be more likely to be able to answer anything brought up by the DJ or opposition. It shouldn't knock your confidence, it should improve it. In fact, you've already figured this out yourself in your post below..

Thanks lilly.

I will just have to ensure that I have enough supporting legislation that I can put his way if needed.

Can you answer my earier question about hearsay evidence? With the different rules applicable to Small claims, can it still be applied or is it the luck of th draw?

 

Re. the admisability of hearsay evidence, the law applies in the CC as much as in any other court so the claimant still has to show proof of where/how the evidence was derived.

 

However the burden of proof for your whole case is not the same in the CC as in a criminal court & judgments can be made on a balance of probability. That is solely for the DJ to decide & where the DJ lottery comes into play . However the more convincing the arguments you put forward based on the law, the less likely it is that the the DJ will ignore those - indeed, if he did, it would give you grounds for appeal.

[cymruambyth]

Thanks alot for your continuing support. It was reading something about the level of evidence required in small claims cases that made me worry (yet again) about hearsay evidence!

[cymruambyth]

hi what is the exact bit that I quoteto say that a DN is not valid because it contains charges?

[cymruambyth]

Hi guest, oh has found a couple of gems

[foolishgirl]

hi what is the exact bit that I quoteto say that a DN is not valid because it contains charges?

 

Hope this is not too late for you Cy...

 

A DN has to be accurate - that means that if the sum quoted as arrears contains unlawful charges, the sum is not accurate.

 

The case law to quote is:

(Woodchester Lease Management Services Ltd v Swayne and Co - [2001] GCCR 2255) & Wilson v FCT

Wood v Swayne link: Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

 

Read in conjunction with Wilson V FCT judgment means that if a defective DN is served, tonly the arrears at that time can ever be claimed, never the full balance

Wilson link: Wilson v First County Trust Ltd [2001] EWCA Civ 633 (2 May 2001)

 

Quote from car off another thread:

 

Woodchester needs to be read in line with the Wilson cases.

 

If you read Woodchester in isolation, the application in your situation isn't immedately obvious - the issue there being an inaccurate default and term notice meant the subsequent action taken was unlawful, hence the repudiation.

 

Wilson (v FCT) covers the instance of a breach of obligations of the creditor under the original agreement, which was unenforceable because of missing prescribed terms, which was incapable of default/termination as a result.

 

Combine Woodchester and Wilson v FCT and there you have it.

Edited January 4, 2010 by foolishgirl
addition

[diddydicky]

hi what is the exact bit that I quoteto say that a DN is not valid because it contains charges?

 

my advice is NOT to quote anything,

 

if they have terminated on the back of a defective DN you merely accept that they have unlawfully rescinded the agreement and that it no longer endures

 

it is for them and their lawyers to figure out what is wrong with it

[cymruambyth]

Thanks, not too late, gosh up to 2 guests now:eek:

[citizenB]

Thanks, not too late, gosh up to 2 guests now:eek:

 

You will have to start rationing the seating:D

[cymruambyth]

Very nice DJ, but that doesn't make the result any better!

Failed

His copy of the agreement was more lebgible than ours and due to Manchester case satisfied the law.

DN he couldn't act on because I hadn't taken full copies of judgements for him to review.

Incorrect clauses on POC, [problem] pointed out that this was an admin error - sorry! Couldn't tell us this in the 90mins waiting for court, which would have meant a different tack.

I had done excellent research - wow!

Didn't grant appeal because didn't think we hadgrounds to succeed.

Ambushed by [problem], not happy, but a nice DJ.

Peace and goodwill to all Caggers, but not the legal and banking industries!!!!!!

[foolishgirl]

Oh dear Cy - my commiserations.

 

At least you got credit for trying.

 

However what was wrong with the POC? Does that not give you grounds for appeal? And, if DN was defective??!!

[cymruambyth]

Hi I'm not sure. In the POC they referred to 3 clauses in the t+cs which were the incorrect ones. Their sol amended at start of procedings, even though OH complained ..on the probability....

DN contains charges, but OFT ruling after it was issued so wouldn't have bearing. Also cases referred to were after issue, so again no bearing!

But DJ was very nice about it all:rolleyes:

[foolishgirl]

DN contains charges, but OFT ruling after it was issued so wouldn't have bearing. Also cases referred to were after issue, so again no bearing!

But DJ was very nice about it all:rolleyes:

 

IMO the date of the OFT ruling is not applicable. The charges were always unlawful, whenever they were applied, OFT statements or no OFT statements, so therefore DN would have been worng. Also the cases you referred to were 1998 & 2001 - when was the DN issued?

[citizenB]

This doesnt sound right to me at all.

 

Cy, I am bitterly disappointed.

[banker_rhymes_with]

Hello C!

 

Sounds like you have been stitched up.

 

The Manchester Test case has been used incorrectly against you. In this case the bank is the Claimant, and to enforce they need to prove their case and show they have an Agreement, signed by you, that was compliant with s61(1)(a).

 

Plus, they needed an effective s87(1) Default Notice.

 

The DJ may have been nice as pie, but he/she has misdirected him/her self.

 

I would seriously consider an Appeal. The DJ can refuse an Appeal, but has to complete Form N460 stating their reasons. Ask for that ASAP, because you will need that if you are to Appeal. The DJ refusing it means not a lot, particularly if they were wrong, and especially if **** ambushed you in any way.

 

I think we need to hear all, and then we can see if you have reasonable grounds for an Appeal.

 

The lower Court Judges are a nightmare, but Appealing is one way to put right the wrong.

 

Must dash for food, but sorry to hear you have been shafted by the old Judge Lottery.

 

Cheers,

BRW

Edited January 4, 2010 by banker_rhymes_with
Stray word deletion! N460 Typo

[foolishgirl]

.

 

The Manchester Test case has been used incorrectly against you. In this case the bank is the Claimant, and to enforce they need to prove their case and show they have an Agreement, signed by you, that was compliant with s61(1)(a).

 

Plus, they needed an effective s87(1) Default Notice.

 

The DJ may have been nice as pie, but he/she has misdirected him/her self.

 

 

Well put BRW!

[diddydicky]

well worth forking out for a transcript i think

[cymruambyth]

Hello C!

 

self.

 

I would seriously consider an Appeal. The DJ can refuse an Appeal, but has to complete Form N460 stating their reasons. Ask for that ASAP, because you will need that if you are to Appeal. The DJ refusing it means not a lot, particularly if they were wrong, and especially if **** ambushed you in any way.

 

I think we need to hear all, and then we can see if you have reasonable grounds for an Appeal.

 

The lower Court Judges are a nightmare, but Appealing is one way to put right the wrong.

 

 

 

Cheers,

BRW

 

Just realised you have changed the form number, it's making my search alot easier now! Though the court is still sounding slightly bemused by my request:eek:

 

If, at the conclusion of a hearing, you are asked for permission to appeal, you should complete Form N460 in every case, whether you refuse or grant the application. It should then be handed to the party who asked for permission.

Civil Bench Book

[citizenB]

It will be interesting at the very least to see why the Judge refused you leave to appeal in the first instance.

[cymruambyth]

It will be interesting at the very least to see why the Judge refused you leave to appeal in the first instance.

 

We didn't have a sufficient case that would win on appeal:mad:

[the_shadow]

It will be interesting at the very least to see why the Judge refused you leave to appeal in the first instance.

 

Yep indeed.... Didnt I read on here or the original email notification message that the judge had had an email with details of the manchester cases that morning... was this a directive or the actual copy of judgment in which case he/she surely wouldnt have had time to dissect it properly prior to your trial?......... or did I just dream all the above

 

S.

[cymruambyth]

Yep indeed.... Didnt I read on here or the original email notification message that the judge had had an email with details of the manchester cases that morning... was this a directive or the actual copy of judgment in which case he/she surely wouldnt have had time to dissect it properly prior to your trial?......... or did I just dream all the above

 

S.

Yes, yes, yes.

I think, but cannot be sure that he was looking at the summary of findings, saying that points1 and 3 were applicable, but not 2, which [problem] agreed. He also mentioned McG case but both he ans [problem] didn't think this was applicable!!!!